How to do it?
Who can ask to sign an agreement?
The employer under the general or agricultural scheme can ask Urssaf (or the “mutualité sociale agricole”) to conclude an agreement. He can be represented by a chartered mandated accountant (“expert comptable mandaté”) or a lawyer. The employer must be up to date with his mandatory social statements (“obligations déclaratives”) and payments towards Urssaf.
What is the applicable procedure?
The employer addresses his request to the Urssaf Director. The director has 30 days to respond, but can ask for additional information or supporting documentation (which prolongs the time limit). When no response is given, the request for agreement is deemed rejected. In case of agreement, the transaction is handed by Urssaf to a ministerial authority, which is given 30 days, extendable to 60, to approve it. Its lack of response is deemed acceptance.
When can the request be made?
The request for an agreement is only possible (i) as of the reception of the formal notice before reference to the Urssaf Arbitration Committee (“Commission de recours Amiable or CRA”). In this event, the time limit for reference to the CRA, which is of 1 month, is postponed. The request can also be made (ii) after the CRA decision, once the Social Security Court (“TASS”) got the case.
What is the scope of the agreement?
The “transaction” can only address those points precisely listed by the law, which are:
- fines and penalties for late payment, as in tax law;
- benefit in kind and professional expenses, when their evaluation is “particularly difficult” ;
- the amount of Urssaf reassessments, not calculated using the real basis rates (“base réelle”) (but lump sum reassessment, or reassessment based on a sample and an extrapolation, except where the specific procedure of Article R.243-59-2 of the Social Security Code (“CSS”) is used).
Example of issues that may lead to the request and conclusion of a transaction with urssaf
Professional expenses: a way out for the current litigations regarding to the costs of consultants’ meals
A dense and lengthy dispute has been opposing engineering firms (“SSII”) and Urssaf for several years now. It pertains to the exemption of meal payments allocated to the consultant employees sent for missions at clients’ premises. The dispute, which should be brought before the Supreme Court (“Cour de Cassation”), mainly concerns the interpretation of the terms of the DSS/SDFSS/5 B n°2005-389 regulation dated August 19, 2005 as to the length of the missions and the notion of ordinary place of work (“lieu de travail habituel”) for these consultants.
In parallel to this dispute, which resolution may have heavy consequences for the actors of that sector, the Acoss (organism that manages the Urssaf policy) has been instructed by the Social Affairs Department (“Ministère des affaires sociales”) to issue a regulation on the matter, which it did on July 6, 2015. This regulation (“circulaire”) provides that “the meal allowances paid during the first three months of the mission with the same client company give rise to exemption from social security contributions”. This explicit 3-month tolerance may be claimed by the SSII and applied to the current dispute. In this context, companies may, subject to their particular situation and their interest to find an agreement, make a deal with Urssaf in order to end the litigation they are currently in.